PGG Wrightson Seeds - Submission to the
Productivity Commission’s Inquiry into
Australia’s Intellectual Property
Arrangements.
November 2015
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Table of Contents
1.
Structure of the pasture seed industry ................................................................................. 3
2.
Nature of innovation in pasture seed ....................................................................................4
3.
What limits the rate of innovation in pasture seed products? ................................................5
4.
3.1.
Demand .............................................................................................................................. 5
3.2.
Information .......................................................................................................................... 5
3.3.
Intellectual property rights ................................................................................................... 5
Productivity commission questions regarding the efficacy of plant breeders rights ...............6
Questions 1 - Is there quantitative evidence to show that the introduction of PBRs led to an increase
in the quality and quantity of new plant varieties, and as increase in the role of the private sector in
plant breeding? .......................................................................................................................... 6
Question 2 - The Commission seeks evidence from plant breeders and other stakeholders
(particularly farmers and farm representatives) on whether the introductions of PBRs has led to a
more productive and profitable agriculture sector in Australia that would have been the case under
general IP protections. ............................................................................................................... 7
Question 3 - Are the protections afforded under PBRs proportional to the efforts of the breeders?
............................................................................................................................................ 8
Question4 – Is there evidence the introduction of PBRs has contributed to the development of the
Australian seed export industry? Is this a suitable role for IP policy? .........................................10
Question 5 - How adaptable is the system of PBRs to technological change? Should PBR legislation
be amended in light of technological developments, or can new high-value plant varieties (however
they are developed) be adequately supported by patent laws? .................................................10
5.
Principals to guide the assessment of the IP system as they relate to innovation in
pasture breeding. ...............................................................................................................11
5.1.
Efficacy ............................................................................................................................. 11
5.2.
Efficiency .......................................................................................................................... 12
5.3.
Adaptability ....................................................................................................................... 13
5.4.
Accountability.................................................................................................................... 13
6.
Recommendations and conclusion .....................................................................................14
7.
References.........................................................................................................................16
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1. Structure of the pasture seed industry
Pastures form the base of Australia’s sheep, cattle and dairy industries, thus their rate of
improvement is of considerable consequence to the economic health of rural Australia. Historically
state government departments and commonwealth research institutes (i.e. CSIRO) had a mandate
and the resources required to improve pasture products. However, the last couple of decades have
seen significant withdrawal of state resources to the point where there is little functional forage
breeding capacity remaining in the public sector.
The reduction in state spending on pasture variety/cultivar improvement is largely driven by a
‘beneficiary pays’ principal and a realisation that state investment crowds out private sector
investment. The most recent example of this withdrawal is this year’s attempt to transition to private
industry the West Australian state pasture breeding program, which is to be transitioned by tender
process. The West Australian government has acknowledged the state breeding program was
financially unviable due to Western Australian farmer’s entrenched disregard for, and
unenforceability of Plant Breeders Rights (PBRs) (Fulwood 2015). In Western Australia the illegal
sale of PBRs protected cultivars over-the-fence is ubiquitous, and thus private (and shortly state)
investment in the improvement of cultivars for Western Australian farmers is near non-existent.
Thus the unenforceability of PBRs in Western Australia has likely deprived its farmers of investment
required to improve their productivity.
In contrast, other pasture seed markets receive considerable private sector investment. The largest
investment by far is focused on the breeding of perennial ryegrass, as this is sold primarily into
markets which appreciate and seek to purchase products with improved economic traits. Perennial
ryegrass improvement is further discussed below in relation to the questions posed regarding PBRs
in the Productivity Commissions Issues paper.
Currently the Australian seed industry is comprised of approximately seven seed companies, three
of which (all based in New Zealand) have consequential investments in research and development
(R&D) with between three and twelve full time plant breeding staff in addition to support staff, and
up to $15 million of annual R&D investment. Genetic gain in grass products is largely a
consequence of investment by these large R&D firms. The ‘breeding’ activities of remaining firms is
usually limited to the activities of a single person within the firm whose role is largely to generate
crosses between elite cultivars (bred by the R&D firms) and select for sufficient morphological
differences to gain PBRs registration. The morphological differences selected for are often of little
or no economic consequence for farmers. Whilst it is yet to be tested, many cultivars marketed by
these non R&D firms will have received little more than cosmetic breeding to circumvent the intent
of PBRs legislation and thus likely fall within the bounds of Essential Derivation under the PBRs
legislation.
In addition to local innovation, the licensing of IP generated overseas (in the form of cultivars) is the
primary means of increasing product quality on the local market place in some species, for instance
Lucerne.
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2. Nature of innovation in pasture seed
Most species used in pastures are outcrossing (i.e. ryegrass, tall fescue, lucerne, phalaris and
cocksfoot), where the marketed cultivar consists of heterogeneous populations exhibiting relatively
uniform morphological traits. This is in contrast to cereals and many fruits and vegetables and
ornamental plants where products marketed are either homogeneous populations (for selfpollinating species) or are vegetatively propagated. The innovations of economic relevance to
farmers are primarily forage yield, forage quality and persistence and disease resistance of the
forage plants. In contrast, PBR only concerns itself with morphological traits, the majority of which
are usually of no economic consequence to a farmer.
The most critical innovations for pasture based farmers are those of highest economic importance,
including:




increased forage production in seasons of feed shortage, i.e. autumn, winter and summer;
the ability for a plant to persist, thus reducing the average annual cost of pasture
establishment;
the digestibility and chemical characteristics of the forage grown; and
resistance of the forage plant to relevant diseases.
Given all of the above can be readily measured, if innovation in them is to be encouraged we must
seek to make the IP associated with their improvement protectable, currently it is not.
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3. What limits the rate of innovation in pasture seed
products?
With the withdrawal of state breeding resources, investment in the improvement of pasture seed
products is now entirely a function of a private firms expected return. There are three pre-requisites
conditions for a firm to realise a return on investment in pasture seed products. These are listed
and discussed below.
3.1. Demand
There must be sufficient demand from farmers for a particular products/solution. Firms will invest
the most resources into the markets with the highest potential returns given existing IP rights. An
example of this is the large investment into perennial ryegrass but the comparatively small
investment into the improvement of products for Australian farmers in marginal farming zones.
Intellectual property rights have a role in demand as they allow product differentiation, a prerequisite
for the communication of product quality.
3.2. Information transparency
There must be market place transparency, i.e. no product quality information market failure.
Currently all firms in the Australian market place, including those with no consequential R&D
investment claim to have the best products for Australian farmers. This is not possible, and as there
is no independent arbiter of product quality, the Australian market place is rife which what likely
qualifies as deceptive and misleading conduct. This inability to transparently communicate product
quality significantly constrains the private sectors ability to invest in innovation for Australian
farmers. It is promising to see farmer levy funded organistions such as Meat and Livestock
Australia (MLA) and Dairy Australia (DA) finally appreciate the role this information market failure
has in constraining investment. Both organistions are attempting to solve it via establishing
transparent cultivar evaluation schemes.
Intellectual property rights like PBRs are essential for these in-market product quality testing
programs as they are needed to justify the investment in such programs.
3.3. Intellectual property rights
There must be sufficient IP rights to prevent free-riding and allow a return on investment for the IP
generator. This is discussed in the sections below.
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4. Productivity commission questions regarding the efficacy
of plant breeders rights
Questions 1 - Is there quantitative evidence to show that the introduction of PBRs led
to an increase in the quality and quantity of new plant varieties, and as increase in
the role of the private sector in plant breeding?
As an important input to most Australian dairy farms and many Australian sheep and beef farms,
perennial ryegrass is by far the highest value market segment (by seed sales) within the Australian
pasture seed market. Prior to the introduction of PBRs no private firm bred perennial ryegrass as it
was not possible to obtain a return on investment. After the introduction of PBRs many firms
commenced perennial ryegrass breeding and the improvement of these products now attracts
considerable investment.
PGG Wrightson Seeds have a large database of perennial ryegrass cultivar performance data, with
information on almost all cultivars currently and historically marketed in Australia and New Zealand.
Total annual dry matter production is one important measure of a cultivar’s performance and in
Figure 1 is shown as a function of year of release. Cultivars bred by the state sector are displayed
in red and private sector cultivars displayed in blue.
Figure 1 has been provided commercially-in-confidence to the productivity commission.
Figure 1 Rate of genetic gain in total annual yield
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Impact of PBRs on quantity of available plant varieties.
It is clear that prior to the introduction of the Plant Variety Rights Act of 1987 there was no private
sector investment in perennial ryegrass breeding. Subsequent to the introduction IP legislation the
private sector commenced significant breeding efforts. Plant Breeders Rights have afforded firms
sufficient IP protection to incentivise some investment in perennial ryegrass breeding and this has
undoubtedly had a positive impact on the quantity of new plant varieties available to Australian
farmers.
Impact of PBRs on the quality of available plant varieties.
Linear regression equations fitted over both the state and private bred product reveal the
introduction of PBRs has also had a very positive impact on the rate of innovation. Historically state
bred products increased in yield at a rate of 11 kg of dry matter per hectare per year
(kgDM/ha/year), whilst those released by private firms increased at a rate of 66 kgDM/ha/year, six
times the rate of gain. This data clearly demonstrates the positive impact PBRs have had on the
quality of new perennial ryegrass variety available to Australian farmers.
Figure 1 also demonstrates that as a consequence of information market failure, many firms are
able to market products to farmers that are in no way improved in yield, i.e. private products below
the regression line. It is hoped that MLA and DA’s market place transparency measures limit the
opportunities for this regrettable behavior by some seed companies.
Question 2 - The Commission seeks evidence from plant breeders and other
stakeholders (particularly farmers and farm representatives) on whether the
introductions of PBRs has led to a more productive and profitable agriculture sector
in Australia that would have been the case under general IP protections.
It is clear from Figure 1 that the introduction of PBRs is strongly associated with a large increase in
the number and performance (six times greater annual rate of improvement) of plant varieties
available to Australian farmers, and as such will have contributed to a more profitable agriculture
sector in Australia.
An independent review by Dairy New Zealand (2011) indicates the genetic gain realised by private
sector firms has increased annual profits of New Zealand dairy farms by approximately $20/ha/year.
We would expect a similar conclusion had the work focused on Australian data.
It is more difficult to determine if a similar rate of gain could have been achieved under more general
IP protections such as patents. Given patent protection existed prior to the introduction of PBRs
and yet there was no private sector perennial ryegrass forage breeding, history suggests the
investment in plant breeding would be much lower under more general IP protections.
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Question 3 - Are the protections afforded under PBRs proportional to the efforts of
the breeders?
Breeders of pasture products seek to improve traits of economic relevance to farmers including
seasonal yield, forage quality, persistence and disease resistance, whilst PBRs is largely concerned
with morphological traits, most of which are economically inconsequential for the financial wellbeing
of farmers. The process required from inception of an idea to first sale of seeds takes
approximately 15 years and is demonstrated in Figure 2 below.
Inception
Year 0
Innovation
Year 1-3
Stage 1
Evaluation
• Identify future Australian farming needs
• Talk to farmers
• Liaise with industry
• Professionally develope scietists, anamial nutritionists, entimologists and plant breeders
• Liase with international breeding team and partners
• Source and integrate germplasm with required traits
• Combine with elite germplasm
• Internal trails and evaluation at five or more locations usually in at least two countries
• Select products to progress
Year 4-5
Stage 2
Evaluation
• Wider scale plot trials at multiple locations under animal grazing
Year 6-8
Stage 3
Evaliation
• Animal safety and performance testing
• Onfarm evaluation
Year 9-10
Seed
production
Year 11-13
Sales
Year 14 or 15
• Contract seed production
• Ongoing animal safety and performance trials
• Ongoing onfarm evaluation
• First seed sales
Figure2 Timeline for breeding an innovative product
As R&D focused firms such as ourselves are also involved in pre-breeding (steps required prior to
the breeding process, i.e. germplasm collection and the development of novel biotechnology
approaches), some products have a further 10 years of expenditure proceeding the process
described above.
As discussed earlier, despite PBRs legislation intending to spur innovation by allowing a breeder to
benefit from their innovation and prevent free-riding, in reality, due to reasons of enforceability, and
PBRs focusing on economically inconsequential morphological traits, innovations in the
aforementioned traits in out-crossing species remain essentially non-rivalrous and non-excludable
goods. Whilst it takes the financing of a team of skilled professions many years to improve the
performance of economic traits, it takes relatively little time and minimal expenditure to ‘free-ride’ by
altering morphological traits.
To demonstrate this point we have analysed a recent PBRs application which describes the
‘breeding’ of a new phalaris cultivar. As a background, the first phalaris’ in Australia had poor winter
growth and were sensitive to acid soils. Much investment by the CSIRO using a range of plant
breeding techniques improved the winter growth rates, acid tolerance and persistence of various
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cultivars. In the ‘Origin and Breeding’ section of this PBRs application it is described how a number
of cultivars (all bred and owned by the CSIRO) are crossed, with seed from one of the cultivars
being collected and subsequently planted with offspring selected for morphological traits sufficiently
different to allow PBRs registration. It is doubtful the process described in this particular PBRs
application has any consequential positive impact on traits of economic relevance or is in any way
innovative or creative. As such this PBRs application literally describes the series of steps required
in an outcrossing forage species to circumvent the intent of PBRs legislation. In this instance
CSIRO have certainly not been afforded protections proportional to their efforts. Many PBRs
applications for outcrossing forage species from firms lacking consequential R&D spend describe a
similar process. In contrast to the process required to improve a products value to society via
innovation, the process of ‘free-riding’ as it occurs in our industry is described below in Figure 3.
Cross cultivars
Year 1
Change morphology
Year 2
Register for PBRs and
commence seed
production
Year 3 and 4
Commercialise
Year 5
• Plant seeds of compeditor's cultivars
• Cross cutlivars
• Plant progeny and select for plants that are morphologically disctinct
• Re-cross selected progeny
• Undertake PBRs trial on progeny from year 2
• Commence seed sales, often with marketing aided by refrence to
compeditor's cultivar the new variety was "bred" from.
Figure 3 Timeline for 'free-riding'
The process above describes what is required to free-load within the PBRs system. However, as
PBRs legislation does not apply to cultivars not registered for PBRs, a far quicker way to circumvent
the intent of PBRs legislation is simply to market a competitors cultivar with a different name or an
in-paddock cross between competitor cultivars (where two competitor’s products are mixed, sown in
a paddock and the resulting seed harvested). Thus pasture seed companies can be profitably run
by free-riding a large portion of their IP directly off R&D focused companies. This process is
common, and should the commission require it we are able to highlight many cases of this occurring
in many important pasture species.
Given the protections afforded under PBRs for outcrossing forage species are minimal, we suggest
the legislation does not offer reward proportion with the breeder’s effort. Whilst the lack of any
effective intellectual property rights may only impede genetic gain in species such as perennial
ryegrass for which there are many comparatively informed consumers, for species with smaller
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market sizes (like the species cocksfoot and phalaris, both important for Australian farmers) where
information market failure is rife (i.e. firms can easily mislead the market about product
performance), minimal private sector breeding occurs, if any.
An additional issue for the pasture seed industry and one we believe the Australian Seed Federation
(ASF) have addressed in their submission to the commission is the over the fence trading. This
practice is rife in areas such as West Australia, and common in Tasmania. This practice (especially
in Western Australia) seriously diminishes Seed Company’s ability to invest in product improvement
for these markets.
Question4 – Is there evidence the introduction of PBRs has contributed to the
development of the Australian seed export industry? Is this a suitable role for IP
policy?
Australia has a healthy and growth seed export industry that is no doubt aided by the existence of
PBRs in Australia. Whilst many overseas markets are generally indifferent to cultivar (i.e. they just
want Lucerne seed and are not concerned with the cultivar), some markets (for instance perennial
ryegrass into Europe) require PBRs registration as part of a broader quality control process. As
such PBRs does contribute to the Australian seed export industry.
Question 5 - How adaptable is the system of PBRs to technological change? Should
PBR legislation be amended in light of technological developments, or can new highvalue plant varieties (however they are developed) be adequately supported by
patent laws?
Molecular plant breeders no doubts have concerns about the PBRs system. The act of improving
traits of economic importance via molecular techniques does not necessarily alter morphology. As
such a cultivar with an economic trait improved via marker assisted selection (MAS) or genomic
selection (GS) may be un-protectable, as it is morphologically indifferent from other cultivars. Even
if it were to be grated PBRs (presumably due to breeding for an inconsequential morphological trait),
the genetic gain would remain non-rivalrous and non-excludable, reducing incentive to use the
molecular plant breeding techniques.
Molecular plant breeding techniques are substitutes for traditional plant breeding techniques and as
such the deficiencies associated with the PBRs system are common to plants bred via either of
these. Given the relatively recent emergence and rapid progression of molecular and DNA based
technologies capable of determining the relatedness of plant populations, the ability to utilise DNA
technology to inform PBRs decisions and aid enforcement must be considered a high priority.
Whilst the system continues to rely of morphological traits to decide on the distinctness of cultivars,
PBRs will remain almost impossible to defend, and thus ineffective in outcrossing species.
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5. Principals to guide the assessment of the IP system as
they relate to innovation in pasture breeding.
Below we consider in turn each of the principles by which the Productivity Commission propose to
review the PBRs system, prior to making recommendations.
5.1. Efficacy
Despite problems with enforcement (i.e. over-the-fence trading), the PBRs system is more effective
for self-pollinated species (i.e. cereals) and vegetatively propagated crops (i.e. potatoes) than cross
pollinated species. Even when over-the-fence trading occurs in broad acre crops that deprive the IP
owner of seed sale revenue, the end point royalty system for cereals appears to provide sufficient
revenue to warrant breeding effort. The same cannot be said for forage products where free-riding
by other seed companies or over-the-fence trading deprives the breeder of all return on investment.
Existing IP rights are somewhat effective, as in some product categories, such as perennial
ryegrass, it allows innovation to occur which we and our data set’s suggest would not have occurred
in the absence of these rights. However, in other categories they must be considered ineffective, as
they are insufficient to spur any consequential private investment.
Additionally the existing IP rights aid trade in and dissemination of innovations through the economy
by allowing a market place with differentiated products to exist.
Does the IP system lead to additional IP being generated?
The protection afforded by PBRs has resulted in effective private sector investment in some pasture
species. The example given above is of perennial ryegrass, where the private sectors involvement
is correlated with six times the rate of genetic gain that occurred under state programmes.
However, there are many more species of arguably equal importance to the Australian economy
(i.e. sub-clover and phalaris) that are ignored for very good financial reason by private sector
breeders. Future rates of genetic gain in these species relies on solving information market failure,
in addition to providing sufficient IP protection to afford firms a commercial return on their breeding
investment.
Is the IP system effective in dissemination IP?
The IP system for plant varieties has undoubtedly aided the trade and dissemination of IP. Whilst
there are many exceptions, the existing system of IP rights has allowed firms to increase investment
in some species and trade these domestically and internationally. In addition, the existence of IP for
plant varieties in Australia has allowed Australian farmers to benefit from the licensing of plant
varieties bred overseas.
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5.2. Efficiency
Is the IP system getting the right balance between encouraging IP creation and costs that rights
cause?
As we have described above, in relation to pasture species, the current IP system infers little if any
costs as it is largely not enforceable, i.e. over-the-fence trading in Western Australia and Tasmania
and circumventing the intent of PBRs is easily completed with only minor plant breeding efforts. As
such we would suggest the balance as it stands for pasture species is not optimised and does not
maximise the wellbeing of Australians.
Is the IP system ensuring IP is being generated at the lowest cost?
As a consequence of the limited protection the current PBRs system provides for outcrossing forage
species, firms will seek alternative ways to protect their investment in plant breeding. In the long run
these will likely include tightly held and contractually enforced trade secrets and patent protection,
we as a firm are beginning to explore both these options. It is doubtful the plant breeding processes
required to achieve the above are the lowest cost means of generating genetic gain, but they
become a commercial necessity when other options to protect IP are not available.
Further, as the number of varieties of common knowledge increases, so too does the challenge of
breeding cultivars that are morphologically distinct, and thus able to be protected. In response to
this, firms are diverting ever increasing breeding resources away from traits of economic importance
and into breeding for trivial morphological differences. From society’s perspective, this is a
complete waste of resources as it ultimately detracts from the quality of product offered to farmers.
Is the IP system ensuring that IP is traded so that those that can use it most efficiently can do so?
The existing IP system allows the trading and licensing of our property rights to others. In addition,
many of the products in our portfolio are purchased or licensed from other firms both local and
international. Given this, we suggest the system does allow the trade of IP and market forces tend
to ensure it is traded to those who can most effectively utilise it in any given market.
Is the IP system appropriately balancing the long-run costs and benefits that stem from the system’s
effects on competition and innovation?
In many important product categories for Australian farmers the existing system of IP rights fails to
incentivize any private sector research and development, and consequently little innovation occurs
in these product categories.
In a limited number of categories, some innovation occurs as a consequence of the limited property
rights currently offered but we feel in the long long-run, the benefit to Australian farmers could be
enhanced by allowing firms greater return on investment by preventing free-riding. We must note
however that the industry is rife with deceptive and misleading conduct, and unless this is also
eliminated via transparent cultivar evaluation schemes, additional property rights on their own may
not result in better outcomes for Australian farmers.
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5.3. Adaptability
Does the IP system adapt as the nature of innovation, competition and broader economic conditions
changes?
As it stands the existing IP system for plants is blunt, ineffective and un-adaptive. The most recent
consequence of the system’s deficiencies is the cessation of all Western Australian state forage
plant breeding efforts. One of the main contributors to the states decisions to withdraw from
breeding efforts was an inability to capture all due royalty streams. This was caused by large
amounts of illegal over-the-fence trading (Fulwood 2015).
The future will see significant challenges placed on agricultural system and the private sector is well
positioned to solve these problems on behalf of Australia, as its successful track record in perennial
ryegrass demonstrates. However the private sector will not contribute to its full potential whilst it
cannot gain viable returns. Our IP system must adapt if we are maximise the wellbeing of rural
Australians that now rely on the innovative potential of private firms for their productivity gains.
5.4. Accountability
Are the policies and changes made to the IP system evidence-based and transparent?
In 2007 and Australian Seed Federation made a submission to the Australian Council of Intellectual
Property (ACIP) review into the enforcement of plant breeders rights. In 2010 the ACIP report was
published and as yet few of the accepted recommendations have been implemented. As such the
IP system does not appear to be responding to considered evidence.
Examples of recommendations important for the pasture seed industry from the 2010 ACIP review
of PBRs are:



Recommendations 8 – “Enable EDV declarations to be made in respect to any variety”;
Recommendation 9 – “Amend s.4(c) by replacing the test for important features with a test
for essential characteristics”; and
Various recommendations which aim to make enforcement of PBRs rights feasible.
The outcomes from the ACIP review should be revised and implemented.
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6. Recommendations and conclusion
Based on our submission above to the Productivity Commission’s issues paper on intellectual
property arrangements, PGG Wrightson Seeds make the following recommendations.
All
recommendations are made in the belief they are prerequisites for the innovation required to
improve forage products upon which the profitability of Australian grazing industries rely.
Recommendation 1: The PBRs system should make innovations of economic
consequence protectable, instead of differentiating products based on easily
measured and altered morphological traits of negligible economic consequence. The
traits of primary economic consequence for the Australian livestock industry are:
seasonal yield, persistence, forage quality and disease resistance and should all be
considered for IP protection.
Rational for recommendation: In previous sections we have described in detail how the system of
free-riding functions in the pasture seed industry. We believe this is the primary constraint (in
addition to information market failure) on economic returns to plant breeders and thus rates of
genetic gain.
How the recommendations might be implemented: We recommend an expert panel be formed to
fully review the drivers of innovation in our sector based on historical evidence. This will require
consultation with industry. In light of this, and a better understanding of the extent and
consequences of ‘free-riding’ and other infringements of IP rights, the panel should form
recommendations that better balance the IP protections afforded the pasture seed industry. We
have a variety of suggestions about how this might be achieved, but a further review is the
appropriate forum for them.
Recommendation 2: The PBRs system should seek to allow molecular/DNA based
techniques for determination of distinctness.
Rational for recommendation: The protection of IP rights in out-crossing species is virtually
impossible to defend based on morphological features. The acceptance of DNA based techniques
would reduce the costs associated with protecting IP rights.
How the recommendation might be implemented: Again we recommend an expert panel be
established to review how molecular techniques may aid in the registration of cultivars for PBRs and
the enforcement of PBRs.
Of course Recommendation 1 and Recommendation 2 are
interdependent on each other, i.e. there is little point changing the focus of PBRs if they remain
virtually impossible to enforce and defend and there is little point adding molecular tools to the
options for PBRs defense if the PBRs is of little worth, as is currently the case.
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Recommendation 3: The IP rights granted under PBRs should extend to non-PBRs
cultivars and those essentially derived from them.
Rational for recommendation: This addition to the act is essential for proper functioning of
recommendation 1 and 2, and is well warranted given the portion of non R&D firms portfolio’s that
consist of varieties not registered for PBRs. It is also vital for the prevention of over-the-fence sales.
Recommendation 4: PBRs for forage varieties should be extended to 25 years.
Rational for recommendations: Forage cultivars, especially those for low input marginal
farming areas have very slow adoption, in many cases a cultivar has been marketed for 10 to 15
years before producers gain the trust required in a variety to utilise it on their farm. Given this lag in
adoption, no sooner is a cultivar reaching its commercial potential required to return an investment
to the breeder than current PBRs expires and returns cease. Given the private sector will be called
upon to solve many of the big challenges faced by Australian farmers, extending PBRs for forage
cultivar to 25 years is essential to ensure investment in the high risk, low return research required.
Recommendation 5: We also support the recommendations offered by the Australian
Seed Federation, in their 2007 submission to the ACIP. These are critical to
improving the enforceability of PBRs.
We are yet to see the IP system adapt to the realities of the current market place of reduced state
investment and ever bolder disregard for intellectual property rights. We hope this review and that
changes that come from it allow the full and necessary potential of private led innovation to be
realised for the benefit of Australian farmers.
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7. References
Australian Seed Federation (2007) Submission to the ACIP review of the enforcement of plant
breeders rights. ASF, Canberra.
Australian Council on Intellectual Property (2010) Final report: A review of enforcement of plant
breeder’s rights. ACIP, Canberra.
Dairy New Zealand (2011). Inside Dairy, December 2011 edition, viewed at
http://www.dairynz.co.nz/media/381474/inside_dairy_december_2011.pdf on 26 November 2015.
Pages 20 to 23.
Fulwood (2015) Pasture program on the market. In The West Australian, 10 September 2015.
https://au.news.yahoo.com/thewest/countryman/a/29476517/pasture-program-on-the-market/
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